Prosecutor v. Sesay, Case No. SCSL-04-15-T, Written Reasoned Decision on Motion for Issuance of a Subpoena to H.E. Dr. Ahmad Tejan Kabbah, Former President of the Republic of Sierra Leone (June 30, 2008).

SEISED
of the “Sesay Application for Issuance of A Subpoena to Ahmed Tejan Kabbah”,
filed publicly by Counsel for the First Accused, Issa Hassan Sesay, (“Counsel
for Sesay”) on the 28th of February, 2008 (“SesayApplication”), whereby Counsel
for Sesay requests the Trial Chamber to issue a subpoena to H.E. Dr. Ahmad
Tejan Kabbah, the Former President of the Republic of Sierra Leone (hereinafter
referred to as “Dr. Kabbah”) compelling him to meet with Counsel for Sesay for
a pre-testimonyinterview, and to appear as a witness
in the RUF trial on behalf of the First Accused (“Application”);

NOTING
the Defence Addendum to Sesay Defence Application for the Issuance of A Subpoena
to Former President Ahmed Tejan Kabbah”, filed publicly on the 29th of
February, 2008 (“Addendum to Sesay Application”);

NOTING
the “Prosecution Response to Sesay Application for Issuance of A Subpoena to
Former President Ahmed Tejin Kahbah”, filed publicly on the 4thof March, 2008 (“Response to Sesay Application”),
opposing the Sesay Application;

NOTING
the Defencc Reply to the Prosecution Response to Sesay Application for Issuance
of A Subpoena to Former President Ahmad Tejan Kabbah”, filed publicly on
the 5thof March, 2008
(“Sesay Reply”);

NOTING
the oral ruling of the Chamber on the 13th of March 2008, in which it ordered that H.E. Alhaji Dr. Ahmad
Tejan Kabbah appear at a pre-hearing interview and then in Court to testify for
and on behalf of the Third Accused, if called as a defence witness, on Thursday
the 24th of April, 2008, that the Registrar to Cause a Copy of the said
Subpoena to be served upon H.E. Alhaji Dr. Ahmad Tejan Kabbah and to transmit
copies of this Order and the Subpoena to the responsible authorities of the
Government of Sierra Leone;

NOTING that the Chamber indicated at that time that a reasoned written Decision
on this matter would be forthconhing;

PURSUANT TO Rule 54 of the Rules of Procedure and Evidence (“Rules”);

ISSUES
THE FOLLOWING DECISION:

I. SUBMISSIONS

1. In
his Motion, Counsel for Sesay (“Applicant”) requests the Chamber to issue,
pursuant to Rule 54, a subpoena to Dr. Kabbah Former President of Sierra Leone
to compel him to appear as a witness in the RUF trial on behalf of the First
Accused, Issa Hassan Sesay and to meet with the Applicant in advance of his
proposed testimony.[1]

2. In
response, the Prosecution submits that the Application should be denied and the
Motion dismissed.[2]

3. The
Defence submits
that the evidence Dr. Kabbah could give would materially and substantially
assist in proving Mr. Sesay’s innocence in regard to Counts 15-18 of the
Consolidated Indictment. It states further that this evidence is unique and
could not be obtained from any other person.[3]

4.
The Defence further submits that it has made repeated attempts to contact Dr.
Kabbah since 2004 and while, in meetings held in 2007, the former President
indicated a willingness to be interviewed
through the then Chief of Protocol, Mr. Daramy, no such meeting has materialised.
The Defence avers that Dr.
Kabbah has not responded to any correspondence from the Defence since he left office
in August 2007.[4]

5.
The Prosecution in its response submits that although the question posed by the
Application concerns whether a subpoena should be issued, which may be secondary
to whether, at this point in the trial, such an Application should be heard on
its merits.[5]

6. The
Prosecution avers that Dr. Kahbah was not named in the list of witnesses
produced by the Accused Sesay.[6]It,therefore, submits that to
add him as a witness, the Defence must pursuant to an earlier order, show good cause.[7] It
further contends that if the Defence seeks to add any witness or to modify this
list after the 16th of February 2007 it is only permissible to do so only upon
good cause being shown.[8]

7. It
is also the Prosecution’s contention that other previous orders of the Trial
Chamber requirethat the Defence provide a detailed
summary of each witness’ testimony and that the Defence may only withhold the
names or any other identifying data to its witnesses until 42 days prior to
their testimony at trial.[9]

8.
The Prosecution submits further that in the CDF trial the Accused Norman had
included Dr. Kabbah on his witness list.[10]

9. The
Prosecution, likewise, raises the issue of timing of the Application. According
to the Prosecution, in order for Dr. Kabbah to be a witness in the RUF case,
the Trial Chamber would he requiredto:
a) grant leave to add him to the witness list upon showing good cause; and b)
grant an extension oftime for the closing of the case for the
First Accused or grant relief from the orders that the identity of a witness
must be disclosed 42 days before they testify and that a witness must be placed
on a list of upcoming witnesses at least 14 days before the witness testify.[11]

10. The
Prosecution further asserts that the facts set out in the Application show that
over three years the First Accused attempted to communicate with Dr. Kabbah,
and yet there is no explanation offered as to why he waited until 14 days
before the Sesay Defence case is to end before bringing an application to the
Trial Chamber. Hence, the Prosecution submits that such a delay cannot be
justified in the circumstances of this case, in particular, the fact that the
Prosecution closed its case over 18 months ago.[12]

11.
In its reply, the Defence submits that the Prosecution’s overall objections
ought to be given little or no weight. The Defence further submits that the
Prosecution is attempting to elevate procedural issues above the substantive
merits of the application. The Defence also submits that the Proecution’s
submission that the Trial Chamber ought to resolve the preliminary procedural
issues of modifying Sesay Defence witness list; granting an extension of time
for the closing of the case for the First Accused, Issa Hassan Sesay, or be
asked to grant relief from the orders that the identity of a witness he
disclosed 42 days before the witness testifies; and that a witness must be
placed on a list of upcoming witnesses at least 14 days before the witness
testifies, before considering the substantive merits of the motion, ought to be
rejected.[13]

12.
The Defence, in its reply, further submits that it ought to be trite law and
obvious to any partythat it would be highly improper (and
possibly dangerous) to name and list as a defence witness any person who had not
consented to this course of action, and that this clearly applies-and even more
so in the case of a former President of the Republic of Sierra Leone who
arguably had actively avoided attempts to obtain his cooperation to become a
witness for the Sesay Defence. The Defence contends that not only would this
have misled the Court and the parties but it would also have been impossible
for the Seay Defence to provide a bona fide summary of the testimony or
place the person into a genuine witness list.[14]

13.In addition, the Defence states that the Prosecution
had previously contested that (i) persons who have not indicated their
willingness to testify would not be entitled to protection under the applicable
protective measures Decision of November 2006 and also (ii) to meet the Rule 69
test of “exceptional circumstances” an applying party must establish
“sufficient facts supporting the subjective fears of witnesses [and] must also
provide evidence from other sources indicating an objective basis for assessing
whether a threat to the witnesses’ security exits”. The Defence also argues rha
the Prosecution, in its response, has failed to explain how this test is
properly satisfied in the case of a proposed witness who has refused to meet the
Defence.[15]

14.
The Defence, in its reply, urges the Chamber to reject the Prosecution’s argument
that the Merits of the Application should not be considered on the grounds that
the Trial Chamber had ordered the Defence case for the First Accused, Issa
Hassan Sesay, to be closed on or before the Thursday, 13thof March, 2008 and that there had been a lack of due diligence on the part
of the Defence.[16]

II. APPLICABLE LAW

15. The
Chamber notes that the applicable statutory provision for granting subpoenas is
Rule 54. The said Rule 54 prescribes the standard for issuance of a subpoena in
these terms:

At the request of either party or of its own motion, a Judge or a Trial Chamber
may issue such orders, summonses, subpoenas, warrants and transfer orders as
may be necessary for the purposes of an investigation or for the preparation or
conduct of the trial.

l6. The Trial Chamber recalls further that in its seminal Decision on the
issuance of a subpoena, by a 2-1 majority it laid down the legal standard in
these terms: The applicant.. must... show that the measure is necessary (the
“necessity” requirement) and that it is for the purposes of an investigation or
for the preparation or conduct of the trial (the “purpose” requirement).[17]
Enunciating this standard, the Chamber relied upon the Decision of the ICTY
Appeals Chamber in Prosecutor v. Halilovic[18]and Prosecutor v. Kristic.[19]In this regard, guidance was also sought from the Decision of the Trial
Chamber in Prosecutor v. Bagosora[20]where that Chamber stated as
follows:

First, the proposed
injunction must be necessary in order for the requesting parry to obtain
the material sought. Further, the requested material must be relevant to
the proceedings.[21]
Accordingly, with respect to subpoenas directed at individuals, the Defence must
demonstrate that it has made “reasonable attempts to obtain the voluntary
cooperation of the parties involved and has been unsuccessful”, and the Defence
“must have a reasonable belief that the prospective witness can materially
assist in the preparation of its case.”[22]

17. Addressing
the nature and scope of the Special Court’s authority to issue a subpoena, underRule 54, our Appeals Chamber had this to say:

The determination whether a subpoena should be issued is in the discretion of
the Trial Chamber. This is emphasised in Rule 54 by the word “may”, a Trial Chamber
may issue a subpoena as may be necessary. There is nothing in this rule that
makes it mandatory on the Trial Chamber to issue a subpoena. Consequently, in
adjudicating an interlocutory appeal from a discretionary decision resulting in
the refusal to issue a subpoena, appellate intervention will only be justified
in limited circumstances when the Appellant can demonstrate a discernible
error.[23]

Instructively,
the Appeals Chamber went on to say:

The Court will grant a subpoena if it is “necessary” to bring to court an
unwilling, but important, witness. The phrase in Rule 54 “necessary for the
purposes of... preparation or conduct of the trial” requires the applicant to
show that it is necessary for purposes to issue a subpoena or other order so as
to bring evidence to Court. That is satisfied if the applicant shows that the
subpoena is likely to elicit evidence material to an issue in the case which
cannot be obtained without judicial intervention. The key question is whether
the effect that the subpoena will have is necessary to try the case fairly.[24]

Continuing,
the Chamber reasoned as follows:

It is incumbent on the
party seeking to compel a reluctant witness to testify to satisfy the Chamber
that a subpoena should be issued. The Trial Chamber is entitled to look
carefully at the proposed evidence and may decline to issue a subpoena if the
proposed evidence fails to address a sufficiently material issue. In doing so
the Trial Chamber does not conduct a “premature evaluation” of the probative
value of the evidence, as suggested by the Appellant Fofana. Rather, the Trial
Chamber assesses whether issuing a subpoena to compel a reluctant witness to
testify may be necessary for the purposes of an investigation or for the
preparation or conduct of the trial. With particular reference to the present
ease, the Trial Chamber correctly identified a series of factors that may be
relevant to this inquiry: Whether the information will be of material
assistance to the applicant’s case will depend largely upon the position held
by the prospective witness in relation to the events in question, any
relationship he may have or have had with the accused which is relevant to the
charges, the opportunity which he may reasonably be thought to have had to
observe those events or to learn of those events and any statements made by him
to the applicant or to others in relation to those events.[25]

In conclusion,
the Chamber found thus:

It
was correct for the Trial
Chamber to look both at whether the information sought to be obtained through
the subpoena was necessary, as part of the purpose requirement, and then to
consider whether the subpoena was a necessary measure under the “necessity
requirement”.[26]

III. DELIBERATIONS

18. Thus
guided, this Chamber now proceeds to address the critical question for
determination for the purposes of disposing of the instant application, namely,
whether the Defence has fulfilled the prescribed legal standard to justify the
exercise by the Chamber of its discretion to grant the orders sought. In this
regard, the Chamber reiterates that an application for the issuance of a subpoena
pursuant to Rule 54 must satisfy the Chamber that the evidence sought to be
proffered meets the “legitimate forensic purpose” and “necessity” criteria as
previously described.

19.
Consistent with the Chamber’s reasoning in its CDF Subpoena Decision that the
applicant must demonstrate a reasonable basis for the belief that the information
to be provided by the prospective witness is likely to be of material
assistance to the applicant’s case, or that there is at least a good chance
that it would be of material assistance to the applicant’s case, in relation to
clearly identified issues relevant to the forthcoming trial, We find
significantly that the proposed testimony is likely to be of material
assistance to the defence of the First Accused. This findings is made in two
major respects;

(i), as shown by the First
Accused, that the proposed testimony is likely to show that the First Accused
was doing his best to protect the detained UNAMSIL peacekeepers, and to
reinstate the stalled disarmament process, and (ii), that the former President
can testify about issues integral to the defence of the First Accused and may
show that the, First Accused, was not ordered to attack or coordinate attacks
against the said UNAMSIL peacekeepers but acted alone.

20. Further,
the Chamber wishes to emphasise that, as a matter of law, for the purposes of
Rule 54, the statutory authority for the issuance of a subpoena, as an
instrument of judicial compulsion backed by the threat and power of criminal
sanctions for non-compliance, is to be used sparingly.[27]
The Chamber also opines that convenience is not a sufficient justification for
the issuance of a subpoena,[28] and
that when the evidence sought to be proffered can be obtained through other means,
it would be inappropriate to grant such an order.[29]

21. Based on the foregoing principles of law and
applying the same to the facts and circumstances in support of the instant
application, especially the nature and purpose of the evidence sought to be
adduced, he Chamber is satisfied that the Defence has met the prescribed legal
standard for the issuance of a subpoena under Rule 54 thereby justifying the
exercise by the Chamber of its discretion to grant the orders sought.

IV. DISPOSITION

22. Being thus satisfied, the Chamber pursuant to Rule 54of the Rules,

23.
HEREBY GRANTS the Application by Counsel for the First Accused for the issuance
of a subpoena directed to H.E. Alhaji Dr. Ahmad Tejan Kabbah, the former
President of the Republic of Sierra Leone, for a pre-testimony interview and
for testimony at this trial.

ORIDERS that H.E. Aihaji Dr. Ahmad Tejan Kabbah shall testify, if called as a defence
witness, on Thursday the 15th of May, 2008.

[8]Prosecutor v. Sesay et al, SCSL-2004-15-T-659,
“Scheduling Order Concerning the Preparation and the Commencement of the Defence
Case,” 30 October 2006, para. 1. This deadline was subsequently extended to 5
March 2007, pursuant to SCSL-04-15-T-705, “Decision and Order on Defence Application
for an Adjournment of 16th February Deadline for filing of Defence Material,” 7
February 2007.

[20]Prosecutor v. Bagosora et al., Case No.ICTR-98-41-T, Decision on Request for Subpoena of Major
General Yaache and Cooperation of the Republic of Ghana, 23 June 2004, Trial Chamber
(“Bagosora Decision”),
para. 4.

[21]Prosecutor v. Delalic et al., Case No. IT-96-21-T, Decision of the President on the
Prosecutor’s Motion for the Production of Notes Exchanged between Zejnil Delalic
and Zdravcko Mucic, 11 November 1996, para. 39.